July 7, 2005
Q and A With Floyd Abrams
New York Times reporter Judith Miller went to jail this week for refusing to reveal confidential sources. The attorney for Miller and the Times is Floyd Abrams, who spoke with The Journal about the case, about his career, and also about his new book, "Speaking Freely: Trials of the First Amendment."
Miller faced imprisonment after the U.S. Supreme Court last week refused to hear her appeal and also an appeal by another reporter, Matthew Cooper of Time Magazine. A judge had held both reporters in contempt for not talking to the grand jury probing an alleged leak by someone in the Bush administration. The investigation centers on who may have violated federal law by disclosing the identity of a covert CIA agent. The leak of the agent's name, Valerie Plame, could have been retaliation, because it occurred shortly after Plame's husband, former Ambassador Joseph Wilson, became a public critic of the Bush administration.
Cooper avoided jail time after agreeing to testify. He said his confidential source had, at the last moment, given him clearance to answer questions. Miller could remain in custody for as long as four months - until the grand jury completes its term.
In the interview, Abrams also talked of the Jewish perspective in his legal work, and about his role this year as an adviser to a Columbia University committee assembled following high-profile allegations of campus anti-Semitism.
Abrams, 68, emerged as a leading First Amendment attorney through his role in the 1971 Pentagon Papers case, which he discusses at length in his book. Over the past 35 years, his career has been a virtual textbook in the development of First Amendment case law.
Jewish Journal: What's at stake in the decision of Judith Miller and The New York Times to keep secret the names of confidential sources?
Floyd Abrams: Something that is a staple of Washington reporting and much used outside of Washington, as well. In Washington, a journalist literally cannot find anyone to speak to in the Defense Department, in the CIA, in Homeland Security, except on an off-the-record basis - on a promised basis not to reveal the name of the person who gives the information.
So what is really at issue here is whether journalists are going to be able to continue to function in certain types of reporting. They can do other sorts or reporting. There's a lot of reporting where you don't need confidential sources.
But if you want reporting that deals with national security-related matters, you have to give some sort of allowance for confidential sources to be used and protected. And if the word goes out either that journalists break their word or journalists can't give their word, I think there'll be a significant loss.
JJ: Your client and another reporter, Matt Cooper of Time magazine, face jail time because they won't reveal information about their sources to a grand jury. But it was conservative columnist Robert Novak who actually used the information from the Bush administration source.
FA: Judy Miller did not even write a story about this. Matt Cooper, after Novak, wrote an article criticizing the unnamed leakers. The irony here is that a critic of the leaking and someone who didn't even use the fruits of the leak are now sentenced to jail.
JJ: How is it that Novak doesn't seem to be in the same hot seat as Miller and Cooper?
FA: If this investigation were being carried out by someone other than the special prosecutor, Pat Fitzgerald, who seems to me a straight shooter, I'd be very suspicious. How come Novak, a fellow who is pro-administration, is let loose, and my clients are in the dock? But no, I don't think it's that. Either he's talked or he's taken the Fifth Amendment [against self-incrimination]. Some people have suggested maybe the government does think it will indict Novak; that maybe he did do something illegal.
If something legally happens to Novak, that would raise very grave First Amendment problems, notwithstanding that he's not the most appetizing victim, as far as the liberal community is concerned.
JJ: The coverage has tended to focus on Miller and Cooper.
FA: I don't understand why Mr. Novak is not constantly barraged with questions from other journalists. If he has testified, he'd be free to say, 'They asked me this. They asked me that. I protected my source. Or I didn't protect my source.'
All of this is relevant to my side of the case, too. Because if I knew he had testified, I would be saying with a lot more confidence in court: "What are we doing here? Why are my clients here in the dock?" And if I knew that he had said something in particular, I might be able to say, "Why do you need my people? You've already heard from Novak."
But the government and the courts will not let us see even the written submission of the Special Counsel in which he set forth what he has done, the theory being: It's Grand Jury material; therefore it's secret; therefore I can't see it. Now that's the general rule, but I'm representing people who are very close to being imprisoned, and I'm not entitled to see the documents submitted by the government in support of imprisoning them. That seems to us to be another violation of the Constitution, and that's the due-process clause -- that you shouldn't just be able to lock someone up on the basis of secret information, period.
JJ: Earlier this year, you had a hand in addressing a politically charged issue at Columbia University. You served as an adviser to a faculty committee investigating allegations made by Jewish students against professors regarded as pro-Palestinian.
FA: We were asked to look into charges by some Jewish students that they were mistreated in class and that certain classes were biased against Israel. Some students were saying that they were marginalized in these classes and made to feel as if their views were condemned.
JJ: According to The New York Times, the most credible allegation involved professor Joseph Massad. A student said she asked if it was true that Israel sometimes gave a warning before a bombing, so that people would not be hurt. She accused the professor of getting angry, and responding, 'If you're going to deny the atrocities being committed against Palestinians, then you can get out of my classroom!' The professor denied that the incident occurred.
FA: The student's articulation of what happened was credible. The committee concluded that there were a few instances in which a particular professor had acted inappropriately or potentially so.
The broad issue here is this: Do students have academic freedom rights also? I think they do. They do not have to be humiliated, attacked, disdained. And what should a university do about charges of bias? For this was a matter more of alleged bias than intimidation.
You have to be careful not to sit in constant judgment of the bias or lack of bias of faculty members. That said, if a course becomes a political harangue, its pedagogic value is limited.
JJ: Where do you draw the line?
FA: You'd get rid of a professor who taught the flat-earth view simply on a basis that he's wrong. It's very hard, however, when a professor is talking about deeply politicized subjects.
The committee focused on what it was asked to focus on: incidents of alleged harassment of students by faculty. The broader questions it was not asked to look into. The usual First Amendment answer is to get some more faculty members so that students are exposed to a range of viewpoints - unless what a professor is doing is so far outside the realm of what can properly be offered in a great institution of learning.
JJ: You have not been a supporter of many of the campaign-reform laws, in particular McCain-Feingold.
FA: I wound up with a most unlikely client, Mitch McConnell, in challenging the McCain-Feingold law.
JJ: McConnell is one of the more conservative senators.
FA: Indeed. No one has ever said that Sen. McConnell is not consistently conservative. But on this issue I thought he was right, at least on the part of the case that interested me the most.
What bothered me and still does is the part of the law that makes it a crime for any union or corporation to put an ad on radio and television that mentions the name of a candidate for federal public office within 60 days of the election, or within 30 days of a nominating convention.
When I was called by Lions Gate Films, Michael Moore's distributor of 'Fahrenheit 9/11,' which is a very strong anti-Bush movie, I had to tell them they could not put on television their ads with a picture of Bush within 60 days of the general election, so no ads in September and October of 2004. They couldn't do it within 30 days of the Republican convention, so nothing in August of 2004. And they could do nothing in a state that had a primary within 30 days of that state's primary.
Beyond that, the AFL [American Federation of Labor] had to cancel ads that it routinely used, where they would, for example, say congressman so-and-so should vote in favor of raising the minimum wage. And the chamber of commerce, the pro-business group, couldn't put on similar ads for, say, tort reform, focused on vulnerable members of Congress who were up for election.
JJ: You lost that case in the Supreme Court.
FA: We lost narrowly and definitively. A 5-4 vote, with the three most conservative members, Rehnquist, Scalia and Thomas, voting for us. And Justice Kennedy voting for us, too. Kennedy is probably the most consistently protective of the First Amendment. And we lost all the justices traditionally viewed as more liberal.
JJ: What do you see as the actual solution to curbing the influence of money in politics?
FA: I don't think there's ever going to be a great solution.... I think that the optimum solution was the one advocated by the ACLU, that there ought to be public financing of political campaigns without limiting what private people can contribute. In New York City, for example, we have such a system. Michael Bloomberg last time spent $75 million running for mayor. At least the Democratic candidate had $16 million of city funding. So at least he could be heard, albeit by no means evenly. The other is to require instant disclosure over the Internet of every gift, or every gift over a certain amount made by anyone or anything. So it can become an issue if anybody thinks that too much corporate money goes one way or too much union money goes the other.
JJ: Does your heritage as a Jew give you a particular affinity as a lawyer for the First Amendment, which protects freedom of religion, freedom of speech and establishes the separation of church and state?
FA: Jews are amongst the first victims in countries that don't recognize First Amendment rights or their equivalent. And it seems to me that Jews, in particular, have generally borne that in mind, and that is one reason why Jews have been drawn, out of interest and necessity, to the legal profession.
Many Jews have taken the broad view that it's necessary for them and for all groups of potential dissenters to have these freedoms legally protected. Freedom of speech and equality under the law are such essential values to Jewish people that it has been well said that freedom is always spoken with a Hebrew accent. We carry those notions and principles with us.
JJ: Has post-9/11 America proved to be an especially chilly time for the First Amendment?
FA: During a time in which people are afraid, there is always more of a tendency to suppress speech or to limit it.
The flap about Newsweek, I think, is one example. There were flaws in the Newsweek article, but the notion that the press secretary to the president is now holding press conferences purporting to instruct the press on how to do journalism -- and blaming the press for deaths in Afghanistan -- is suggestive of what happens in times of war, in times of crisis and the like. It's very easy to blame the press, to come down hard on the press, especially at a time when the press does have a lot to answer for. It is also very tempting to try to score political points off the press at such a time.
JJ: Your new book makes clear that the push and pull of competing interests lies at the heart of our legal system. You describe how the government sought to prevent the New York Times and other newspapers from publishing the Pentagon Papers, which were leaked by Daniel Ellsberg and contained critical accounts of U.S. involvement in Vietnam. The government claimed that national security was at stake, and ultimately, the government lost. That ruling is now enshrined in legal lore, but it was a very close call at the time, was it not?
FA: It was a very close call. After a case is over, decided -- and somebody wins and somebody loses -- it becomes the received wisdom. As in: That is the way it had to be. But that was a case that could have been lost
If Dan Ellsberg had gotten up in Central Park and started reading the Pentagon Papers, or indeed, if the Village Voice had published just what the New York Times did, I always thought the First Amendment side's chances before the Supreme Court would have been greatly diminished. Only because the establishment press stood up and took this position did we finally eke out a victory.
What would have happened if we'd lost the Pentagon Papers case? I believe we really would live in a different sort of country. It would not necessarily be un-free, but it would be a lot less free than we are now.
Every president has grievances with the press, especially post-Sept. 11, with fears of war, fears of terrorism. And anyone who is in power has grievances with the press, but doesn't even think about going to court and trying to stop the press from printing. That it is off the table is the big result, at the end of the day, of the Pentagon Papers case. The cultural lesson of the case is that presidents don't have the weapon of a judicial injunction against the press, even when the press publishes material that the president believes is harmful to the country, not to mention the president himself.
JJ: You can still beat up the press afterward if it didn't do its job properly.
JJ: Will the Pentagon Papers precedent survive a new Supreme Court? Or, for that matter, are other landmark decisions on the free press likely to be at stake?
FA: I don't think that the central approach of the Pentagon Papers case is likely to be put back in play.
In lots of other areas, the battles go on and who's on the court is absolutely essential. A lot of people think as many as three justices might leave during this term. Then you really start to cut into the core of the court and you have potential for vast changes in judicial rulings.